Lamorgese v. State of Maine Board of Licensure in Medicine

Superior Court of Maine, Aroostook

March 3, 2017

ROBERTS. LAMORGESE, M.D.v.STATE OF MAINE BOARD OF LICENSURE IN MEDICINE

DECISION AND ORDER REGARDING MOTION TO DISMISS RULE
80C APPEAL

BACKGROUND

On June
16, 2016 the State of Maine Board of Licensure in Medicine
(herafter "Board") issued a Decision and Order
pursuant to 5 M.R.S. §9051-9064, 10 M.R.S.
§8003(5), 32 M.R.S. §3269 and 3282-A regarding
Petitioner's medical license. By its decision the Board
made findings that the Petitioner had exhibited incompetence
in the practice for which he is licensed by engaging in
conduct that evidenced a lack of ability or fitness to
discharge his duties, subjecting him to discipline pursuant
to 32 M.R.S. § 3282-A[2)[E(1), Pursuant to 10 M.R.S.
8003(5)(A-1), the Board imposed terms of probation, setting
forth a number of conditions of probation and the timeframe
to comply with those conditions. Condition 3(a) required
Petitioner:

Prior to his first patient contact, the Licensee must
engage a Board-approved practice monitor who will meet with
the Licensee every two weeks to review patient charts and who
will report to the Board every month for a period of six
months. The Licensee may meet with the practice monitor via
telemedicine.[1]

That
Decision and Order was not timely appealed and no Petition
for Review was filed within 30 days per 10 M.R.S.
§8003(5] and 5M.R.S. §11002(3]. No further formal
disciplinary or enforcement action has yet been brought by
the Board to enforce the terms and conditions of probation.

On
December 2, 2016 Petitioner filed the pending Petition for
Judicial Review of Final Agency Action pursuant to M.R.Civ.P.
80C. In his Petition for Review, the Petitioner challenges
the findings and decision made by the Board in its June 16,
2016 Decision and Order. Petitioner also asserts email
communications, specifically a November 10, 2016 email, from
the Board significantly altered the conditions of his
probation, and therefore said email is a final agency action
from which Petitioner has the right of appeal. The facts
relative to said email are as follows:

By an
email dated October 27, 2016 from Petitioner's counsel to
Julie Best of the Board, counsel wrote:

Istill need clarification as to whether the BOM
insists that the telemedicine monitoring be in person or by
video link, (Record, p. 74].

Ms.
Best responded to Petitioner's counsel with an email
dated October 28, 2016, which stated, in part:

2. The Board's decision and order indicates that Dr.
Lamorgese "may meet with the practice monitor via
telemedicine." The Board will be asked to discuss
whether this provision was intended to require the monitor to
use telemedicine or rather to use it at his/her discretion.
The Board will also be asked to discuss if use of the
telephone alone to conduct monitoring fas telemedicine) will
be sufficient to comply with the decision and order. (Record,
pp. 73-74). Per meeting minutes--

On
November 10, 2016, Ms. Best wrote to Petitioner's counsel
by email:

On
November 8th, the Board met and discussed the points in my
email below. The outcome of their discussion is as
follows:

• The use of telemedicine to conduct monitoring is
at the discretion of the monitor.

As
stated, on December 2, 2016, the pending Petition for Review
of Final Agency Action was filed. On December 19, 2016, the
Board filed a Motion to Dismiss the Petition for Judicial
Review on the basis the Court lacks subject matter
jurisdiction and because the November 10, 2016 email was not
final agency action. A phone conference regarding the Motion
...

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